Monday, February 19, 2007

Reproduction Ethics (Part II)

As I noted in a previous post, I have been involved in a reading group these past two terms with other CSSJ faculty members.

Today’s reading was Jeffrey Reiman’s excellent article in the latest issue of Philosophy and Public Affairs entitled “Being Fair to Future People: The Non-Identity Problem in the Original Position”.

In my opinion Reiman’s article is an absolute *must read* for those interested in reproduction ethics and the non-identity problem. Reiman’s central argument is that the living have a moral requirement to be fair to future people. This might not struck many as a very interesting or contentious claim. But Reiman’s argument goes much further. According to Reiman, the rights of future people are theirs irrespective of which particular individuals they turn out to be. And thus Reiman offers a potential solution to the long vexed puzzle of the so-called Non-Identity Problem.

You may recall that I expressed some frustration with supposed non-person affecting resolutions of the Non-Identity Problem in this post here. For me, if there is a moral harm then *someone* must have been harmed. Reiman proposes a unique way of developing a person-affecting account of the moral harm done in non-identity scenarios. Invoking Rawls’s original position, Reiman argues that in cases like Preconception Wrongful Disability, the child born from such actions has been harmed (i.e. their rights have been violated), even if it is true that non-existence was the only other option for that particular child. Furthermore, Reiman argues that there is no moral difference between cases of preconception and postconception disability.

Like Reiman, I do not accept the standard move people make when faced with the non-identity problem. That is, to invoke a non-person affecting harm prevention principle. But unlike Reiman I do not think it is true that the harm (or at least the most significant harm) done in such cases is a violation of the rights of future people. Let me offer some thoughts on why I think this is the case.

Our procreative decisions implicate a variety of different people in different ways. Firstly, and most obviously, they implicate the parent(s) him or herself: parents must invest the time and resources needed to raise a child with love and care. These decisions can also implicate our existing children if one has other children: we have to balance the diverse demands of doing right by our existing children with the responsibilities entailed by creating another child. And our decision to have a child will also impact society-at-large, as we have the authority to usher “new membership” cards to our potential offspring. Their membership in the cooperative enterprise does not rest on the assent of the other members of the cooperative venture. Parents have sole discretionary power over who gets into the club of society, as well as how many membership cards are issued.

This interconnectedness of members of a cooperative enterprise means that our procreative decisions raise a number of intrapersonal and interpersonal concerns that must be addressed. Where, among these competing claims and interests, do the claims of “future people” figure? According to Reiman’s argument, if I understand it correctly, the wrongs involved in pre and postconception disability are wrongs (either primarily or perhaps even exclusively) to future people (i.e. the child that is born in these cases). The parents have violated the responsibilities the living have to future people. More specifically, they have violated the responsibility to pursue reasonable efforts to ensure that the level of functioning of future people is within “normal species functioning”.

And what is truly novel about Reiman’s stance is that parents can violate this right even when the contravention of this right is what made the existence of the particular child possible.

So what do I make of this argument? I think the invocation of the device of the original position, for the purpose of developing a moral duty to future people, is misguided. This is not to say that it is implausible or wrong (I’m still mulling that over). But there are many distinct ways of making a particular point. I share Reiman’s intuition that in these disability cases there is a person-affecting principle that accounts for our intuition that the parents are doing wrong. But I do not think it is true that they are wronging (or that the most significant wrong is to) future people. Rather they are harming those who must help shoulder some of the responsibility for mitigating the preventable disadvantage that the parents have created.

So the story I would tell is one of the harms to oneself, one’s existing children, and society-in-general, that can occur in such cases. And my ethical theory (insofar as I have one) would be a hybrid view: one that invokes consequentialist arguments in the case of preconception disability scenarios, and consequentialist and deontological arguments in the case of postconception disability.

The biggest disagreement I have with Reiman’s position is his claim that the wrong involved in the case of preconception disability is analogous to the wrong involved in postconception disability. I believe a hybrid theory could explain why the moral stakes involved in these two cases differ. And I think that is essential in this context.

Lastly, developing the kind of hybrid position I have in mind is attractive because it captures a much broader picture of the moral landscape of procreative ethics. Rather than considering what the consequences of our procreative decisions will be on future people, we will ask what consequences they have for *the living*- for ourselves, for our other children, for the existing disadvantaged who will have to compete for scarce medical provisions, and for the advantaged who will be asked (indeed required) to help mitigate these preventable disadvantages.

So when we start from the “here and now”, we realize that we do not need to invoke the hypothetical device of Rawls’s original position to see the moral wrong involved in such cases. All we need to do is consider how our procreative decisions will impact and implicate the life prospects of those in a society with scarcity and pervasive (unpreventable) disadvantage.